Adoption of a child without the consent of the mother. Violation of family life. The Court calls for the restoration of the biological mother-child communication!

JUDGMENT

Omorefe v. Spain 23.06.2020 (no. 69339/16)

see here

SUMMARY

The case concerned the placement in foster care and subsequent adoption of a child and the
inability of the biological mother to retain contact with him.

In 2009 the applicant, Ms Omorefe, asked for her son (born in 2008) to be taken into care by the
authorities on account of her personal and family difficulties. She nevertheless insisted that the
measure should not deprive her of contact with her son. Three months after the child was taken into
care, Ms Omorefe’s visits were nevertheless suspended.

The Court was not persuaded by the reasons given by the domestic authorities to justify the minor’s
pre-adoption foster placement and then his adoption, in spite of the clear opposition of
Ms Omorefe, who had only been able to exercise her contact rights for three months, at the start of
the proceedings, suggesting that from the outset the authorities had intended to place the child with
a foster family with a view to adoption. The Court also noted that the authorities had not envisaged
any of the other, less radical, measures under Spanish law such as temporary placement or simple
placement, measures outside the adoption process which would also have been respectful towards
the foster parents, as they would not have raised false hopes. Consequently, the Court found that
the Spanish authorities had not taken appropriate and sufficient steps to ensure respect for
Ms Omorefe’s right to retain contact with her child, thus breaching her right to respect for private
and family life.

Under Article 46 (binding force and execution of judgments) of the Convention, the Court called on
the domestic authorities to re-examine, in a timely manner, the situation of Ms Omorefe and her
minor son, and to envisage the possibility of establishing contact between them, taking account of
the child’s current situation and best interests.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Pat Omorefe, is a Nigerian national who was born in 1976 and lives in Pamplona
(Spain). At the relevant time she was living illegally in Spain.

In February 2009 Ms Omorefe requested that her son be placed under the wardship of the
authorities in a reception centre run by the regional government of Navarra, on account of personal
and family difficulties (lack of income, housing and work, difficulties in the couple). The following day
the child was declared abandoned and placed in a reception centre. The following month
Ms Omorefe was informed that the measure envisaged was foster care and that her son could be reintegrated into his biological family in the medium term provided that his parents achieved certain objectives.

In March 2009 the appraisal board proposed the implementation of pre-adoption reception in foster
care, finding that the mother had not attended all visits, that she was detached from her child during
her visits and that her personal situation was very unstable. It was also stated that Ms Omorefe
would not object to foster care but she had insisted that it should not deprive her of contact with
her son.

In May 2009 the Directorate-General for Family and Children (“the Authority”) suspended the visits
because of Ms Omorefe’s failure to be present at all scheduled visits and her difficulties in
establishing an emotional bond with the child. It then asked the court to temporarily place the child
in pre-adoption foster care and to relieve Ms Omorefe of her parental authority. The minor was thus
placed in foster care by decision of the court.

In July 2009 Ms Omorefe appealed against this decision. Her application was rejected. Subsequently,
she appealed to the Audiencia Provincial court of Navarra, which admitted her appeal, finding that
the child’s adoption could not take place without the mother’s consent. The Authority lodged an
appeal on points of law, which was declared inadmissible. The pre-adoption reception measure was
cancelled in February 2014.

In March 2014 Ms Omorefe asked to be allowed to visit her son. Having received no reply from the
authorities, she lodged an appeal complaining of the non-recognition of her contact rights.
In June 2015 the first-instance court granted her visiting contact for one hour per month, forsupervised visits at a family meeting facility run by the authorities.

In the meantime the Authority had taken further steps to arrange for the pre-adoption reception of
the minor by his foster family, followed by his adoption, submitting a report in which it noted the
child’s links with the foster family, with whom he had been living for five years, and also his
satisfactory development and positive evolution.

In October 2015 the Audiencia Provincial authorised the adoption of Ms Omorefe’s son, finding that
the lack of consent of the biological mother was not an obstacle if the adoption was in the minor’s
interest. Ms Omorefe’s amparo appeal to the Constitutional Court was declared inadmissible.

THE DECISION OF THE COURT…

Article 8 (right to respect for private and family life)

The Court took the view that the decisions leading to the adoption of Ms Omorefe’s child
constituted an interference with the exercise of the right to respect for the private and family life of
both Ms Omorefe and her biological child. Such interference was provided for by law and pursued
legitimate aims, namely the protection of the child’s rights and freedoms.

As to whether the interference had been necessary in a democratic society, the Court found a
serious lack of expedition in the procedure conducted by the authorities responsible for the
wardship, placement and adoption of the child and by certain courts of first instance in that
connection, particularly noting their failure to take account of the conclusions of the reports drawn
up and decisions taken by the various administrative bodies throughout the examination of the case.
The Court further noted that it had not been shown by the Government that there had been any
follow-up to the decision of the court, the Audiencia Provincial (October 2015), to the effect that the
possibility of a “form of relationship or contact through visits or communication with the biological
mother” could be explored if that were in the best interests of the minor.

In the circumstances of the case, the Court found on the one hand that it was understandable for Ms
Omorefe’s child to have been taken into care by the authorities, since it was the mother herself who
had requested wardship. On the other hand, this decision should have been accompanied promptly
by the most appropriate measures to enable an in-depth assessment to be made of the child’s
situation and his relationship with his parents, if necessary with the father and mother separately, in
accordance with the applicable legal framework. This situation was particularly serious given the ageof the child, who was barely two months old at the time of his initial placement.

The Court was not persuaded by the reasons given by the domestic authorities to justify the minor’s
pre-adoption foster placement and then his adoption, in spite of the clear opposition of
Ms Omorefe, who had only been able to exercise her contact rights for three months, at the start of
the proceedings, thus suggesting that from the outset the authorities had intended to place the child
with a foster family with a view to adoption.

The Court also noted that the administrative authorities had not envisaged any of the other, less
radical, measures available under Spanish law such as temporary placement or simple placement,
not with a view to adoption. Such measures would also have been respectful towards the foster
parents, as they would not have raised false hopes. The role of the social protection authorities was
precisely to assist persons in difficulty, in this case the child’s mother, who had been forced to
voluntarily place her son in care in view of the seriousness of her personal and family difficulties.
Consequently, the Court took the view that the process which led to the decision on the adoption of
Ms Omorefe’s son had not been conducted in such a way as to ensure that all of her views and
interests were duly taken into account. It therefore found that the procedure in question had not
been surrounded by safeguards commensurate with the seriousness of the interference and the
interests at stake. The Spanish authorities had not taken appropriate and sufficient steps to ensure
respect for Ms Omorefe’s right to retain contact with her child, thus breaching her right to respect
for her private and family life. There had accordingly been a violation of Article 8 of the Convention.

Article 46 (binding force and execution of judgments)

The Court called on the domestic authorities to re-examine, in a timely manner, the situation of
Ms Omorefe and her minor son in the light of its judgment, and to envisage the possibility of
establishing some form of contact between them, taking account of the child’s current situation and
best interests, and to take any other appropriate measure in accordance with those interests. In this
connection the Court noted that there had been no contact between Ms Omorefe and her child, neither before nor after the decision of the Audiencia Provincial in October 2015. It took the view that the execution of the present judgment should involve following up that decision.

The Court lastly found that the most appropriate form of redress for a violation of Article 8 of the
Convention in a case such as the present one, where the decision-making process conducted by the
domestic authorities had led to the adoption of the applicant’s son by his foster family, consisted in
ensuring that Ms Omorefe was restored as far as possible to the situation in which she would have
found herself if that Article had not been breached. It noted that domestic law provided for the
possibility of reviewing final decisions found to be in breach of Convention rights by a judgment of
the Court.

Just satisfaction (Article 41)

The applicant had failed to submit any claims for just satisfaction within the allotted time.


ECHRCaseLaw

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